ELIZABETH M. COGAN & another. v. WILLIAM H. COGAN

Morton, J. This is a petition for the appointment of a guardian of the respondent as an insane person. A decree was entered in the Probate Court in favor of the petitioners and the respondent appealed and duly filed reasons of appeal. The case came on for hearing before a single justice of this court [Note p59-1] and was fully heard upon such testimony, oral and otherwise, as the parties desired to submit, and a decree was entered affirming the decree of the Probate Court except that, because of a preference expressed by the respondent, Joseph D. Fallon, Esquire, was appointed guardian instead of Robert Homans, Esquire, who had been appointed in the Probate Court. The respondent appealed to the full court from the decree thus entered.

The evidence was taken by a stenographer who at a later date was appointed a commissioner as of the date of the hearing. Without passing upon the question whether a commissioner

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could be so appointed, on which the presiding justice expressed some doubt, we treat the evidence, for the purposes of this case, as properly before us.

The respondent was his own attorney. He had no knowledge of the law and no experience in the practice of it except such as he had gained while a member for many years of the police force of the city of Boston. Necessarily in such a case the party so acting will be at a disadvantage, and there is always danger that some matter affecting his rights in an important particular may escape attention. We have accordingly examined the record before us and the brief of the appellant with care and we think that not only were the rights of the appellant solicitously guarded by the presiding justice, but that the case was presented with fairness and candor on the part of counsel for the petitioners.

The question whether the respondent was insane or not was a question of fact to be determined by the court upon all of the evidence before it. With the determination of such a question the appearance of the respondent would have a good deal to do. The respondent, as has been said, conducted his case in person. He was also, though against his protest, called as a witness by the petitioners and testified as such. The justice who heard the case had therefore the fullest opportunity to observe his manner and behavior, his physical condition, the way in which his mind appeared to work, the expression of his countenance, and how he spoke and acted, and apparently felt in regard to matters that came up. These and other manifestations of a similar nature would be incapable of reproduction in the printed record, but would properly have great weight with the presiding justice in regard to the finding which should be made. There was also the testimony of Dr. Dewey, an expert on insanity, that in his opinion the respondent was of unsound mind, and there was likewise evidence of acts and declarations on the part of the respondent which could be found to tend in the same direction. The rule is that in cases which have been heard as this was the finding of the single justice will not be set aside unless clearly erroneous. Shapira v. D'Arcy, 180 Mass. 377. Reed v. Reed, 114 Mass. 372. We do not see how it can be said that the finding that the respondent was insane was clearly erroneous.

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The motion for the framing of issues [Note p61-1] was addressed to the discretion of the justice, and there is nothing to show that his discretion was wrongly exercised in overruling it.

The proceeding being of a civil and not a criminal nature, the respondent could be properly called and examined as a witness by the other party, and no constitutional right of his was thereby invaded.

Evidence of what the respondent testified to at the hearing in the Probate Court and the letter to Mr. Conant [Note p61-2] and the folder enclosed were all admissible as bearing on the question of his sanity. It does not appear that Mr. Conant was ever employed by or acted as counsel for the respondent. We infer that the communication addressed to him was one of many similar communications addressed to different people. We understand the respondent to so testify in substance. There was nothing in the nature of a privileged communication from client to counsel.

No exception was taken to the exclusion of the hospital records during the cross-examination of Dr. Dewey by the respondent. But if an exception had been taken, the record, if otherwise admissible, was not properly proved and the court could exclude it for that reason. Moreover we do not see how its exclusion could have done the respondent any harm.

We discover no error in the manner in which the hearing was conducted.

Decree affirmed.

The case was submitted on briefs.

W. H. Cogan, pro se.

H. G. Allen, for the petitioners.